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Courts differ on drug evaluation officers’ expertise

As Canada’s justice system continues to adapt to Criminal Code amendments dealing with drug-impaired driving, the courts are making diverging findings on whether drug evaluation officers are experts when providing evidence in court.

‘We made it clear from the beginning of the case that we were going to be challenging the expertise,’ says Sean Robichaud.

The court’s answer has implications for whether it must conduct a voir dire into the officer’s opinion as per the R. v. Mohan criteria. In R. v. Cripps last month, Justice Brent Knazan of the Ontario Court of Justice, after analyzing the regulation passed under s. 254.1 of the Criminal Code, ruled against the Crown’s bid to deem drug evaluation officers to be experts and therefore weigh their evidence accordingly.

“In my opinion, the legislation, despite its use of the word ‘expert’ in the regulation stating the qualifications of an evaluating officer, does not address the issue of expert evidence at all,” wrote Knazan in his April 15 ruling.

“We made it clear from the beginning of the case that we were going to be challenging the expertise,” says Sean Robichaud, counsel for Emily Cripps in the impaired driving case. But in the meantime, the Crown sought a finding that drug evaluation officers could give expert evidence on whether someone was driving while impaired by drugs. A finding in the Crown’s favour would have given added weight to the officers’ evidence, a scenario Robichaud calls “offensive” in light of concerns about the reliability of the tests they conduct. The ruling, he suggests, reinforces defence lawyers’ ability to challenge drug evaluation officers’ testimony.

“The problem with this type of evidence . . . is that these people become experts after a very short course on recognizing indicia for drug impairment,” says Robichaud.

Police had stopped Cripps in November 2011 after she turned left at an intersection despite a sign prohibiting turns. The officer, whom Knazan noted “had no experience with a driving while under the influence of a drug investigation,” became suspicious after noticing what she thought was a burnt marijuana cigarette and the smell of the drug. Before arresting Cripps, she called a more experienced officer to investigate whether there were grounds to demand Cripps submit to an evaluation by a drug evaluation officer. He determined there were, and the evaluating officer demanded a urine sample after conducting his assessment. According to Knazan, the evaluating officer found Cripps had failed some of his initial tests and passed others. As for the urine sample, an expert medical witness testified marijuana was present along with prescription drugs but “he specifically stated that he was unable to give any opinion on whether or not her ability to operate a motor vehicle was impaired by a drug at the time that she was driving, or at all,” according to Knazan.

The situation left Knazan with the task of deciding what weight to give the drug evaluation officer’s finding that he had reasonable grounds to believe Cripps’ ability to drive was impaired by a drug. Knazan considered the regulation enacted as part of Criminal Code changes aimed at setting out the process for investigating drug-impaired driving. According to the regulation, “an evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police.”

Knazan disagreed with another judge, Justice Richard LeDressay of the Ontario Court of Justice, on his findings in R. v. McCarthy last month in which he suggested a statutory interpretation of the changes “entitles the evaluating officer to give an expert opinion on this issue without being qualified as an expert.”

“With respect to my colleague and others of the same view, I disagree,” wrote Knazan.

“There are a number of reasons even before undertaking an interpretation of the words of s. 254(3.1) for holding that an evaluating officer cannot give expert evidence:

“The decision of the Supreme Court of Canada in Mohan is binding. An expert must be qualified according to the criteria established in that case and McCarthy does not deal with the question of how statutory interpretation of a new section of the Criminal Code can result in not following a decision of the Supreme Court of Canada.”

In addition, Knazan noted it’s not necessary for the court to deem officers to be experts in order for them to give their opinion and that creating a third category of opinion evidence, as the Crown suggested in Cripps, “would complicate an area of the law already encrusted with rules and qualifications, a result very much to be avoided.”

Knazan’s decision on the issue was positive given the concerns about the science underpinning the tests drug evaluation officers conduct, says Toronto criminal lawyer Joseph Neuberger of Neuberger Rose LLP. “A lot of it is not very strong science and a lot of the tests are subjective,” he says.

“Their evidence cannot be dispositive of whether an individual has a drug in their system,” he adds, noting there’s a difference between the expertise of someone like a toxicologist and a drug evaluation officer.

Neuberger compares the issue to sobriety testing and notes the court doesn’t deem the roadside officer observing someone’s driving and behaviour to be an expert. What’s key to establishing guilt, or not, is the intoxilyzer evidence that comes afterwards along with the officer’s observations. With drug-impaired cases, the blood and urinary tests come into play along with the findings of the roadside and drug evaluation officers as well as any experts called in.

“We overdo this expertise stuff. Anybody can be an expert,” says Neuberger.

“It gives credibility where credibility should not be given.”

As for Cripps, Knazan found her not guilty. “There was a left-hand turn against a sign but no evidence that it was not properly executed,” he wrote. “There was another left-hand turn and then the driver pulled over. Without any driving to show impaired ability, this is a circumstantial case, with proof of consumption of drugs but no evidence of how much or when.”

As for the drug evaluation officer, Knazan, wrote: “From this discussion, it follows that I accord officer Mathews’s opinion, that he formed for the purpose of making a demand under s. 254(3.3) of the Criminal Code, the weight it deserves — he is a police officer who observed Ms. Cripps fail some of the tests, pass some of the tests, and be normal in some of the physical measurements that he took. The underlying basis for his opinion is established but he did not see her driving and there was no bad driving to tell him about at all; there was a properly executed left turn three minutes after four by the officer’s car clock.”

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